State Consumer Disputes Redressal Commission
Hdfc Ergo General Insurance Company ... vs Anju Kalsi on 2 June, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Date of Decision:02.06.2016
First Appeal No. 1596 of 2014
Date of institution: 10.12.2014
HDFC Ergo GIC, A-3038, Guru Kashi Marg, Bhatinda through Shri Akshay
Bose, Manager Legal.
Appellant/Op No. 1
Versus
1. Anju Kalsi, Aged about 48 years, W/o Roop Lal, R/o B 247, NFL
Colony, Ward No. 1, Bhatinda.
Respondent No.1/complainant
2. HDFC Bank Limited, 3027-B, Guru Kashi Marg, Near Bus Stand,
Bhatinda.
Respondent No.2/Op No. 2
First Appeal against the order dated 16.7.2014
passed by the District Consumer Disputes
Redressal Forum, Bathinda.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
Present:-
For the appellant : Sh. Sandeep Suri, Advocate
For respondent No.1 : Sh. Rishabh Gupta, Advocate
For respondent No. 2 : Ex.-parte.
2nd Appeal
First Appeal No. 1231 of 2014
First Appeal No. 1596 of 2014 2
Date of institution: 5.9.2014
Anju Kalsi, Aged about 48 years, W/o Roop Lal, R/o B 247, NFL Colony,
Ward No. 1, Bhatinda.
Appellant/Complainant
Versus
1. HDFC Ergo General Insurance Co. Ltd., A-3038, Guru Kashi Marg,
Bathinda through its Branch Manager.
2. HDFC Bank Limited, 3027-B, Guru Kashi Marg, Near Bus Stand,
Bathinda.
Respondents/Ops
First Appeal against the order dated 16.7.2014
passed by the District Consumer Disputes
Redressal Forum, Bathinda.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
Present:-
For the appellant : Sh. Rishabh Gupta, Advocate
For respondent No.1 : Sh. Sandeep Suri, Advocate
For respondent No. 2 : Ex.-parte.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
This order will dispose of both the appeals as both the appeals are cross appeals arising out of the impugned order dated 16.7.2014 passed in Consumer Complaint No. 124 dated 3.2.2014 by the District Consumer Disputes Redressal Forum, Bathinda(in short the "District Forum") vide which the complaint filed by the complainant First Appeal No. 1596 of 2014 3 was allowed and Op No. 1 was directed to pay Rs. 5,00,000/- being the claim of deceased account holder Deepak Kumar Kalsi alongwith interest @ 9% p.a. w.e.f. 1.2.2014(three months from the date of death of insured) till payment and Rs. 20,000/- as compensation and cost against both the Ops. Amount was ordered to be paid within 45 days.
2. Complaint was filed by the complainant against opposite parties (hereinafter referred as Ops) on the averments that Deepak Kumar son of the complainant was having account No. 01871530009692 with Op No. 2 and they had issued Platinum Debit Card No. 4363 0302 0494 6099 to the account holder. At the time of opening the account and issuing the Platinum Debit Card, they had insured account holder for a sum of upto Rs. 10 lacs under personal accidental insurance scheme with Op No. 1. Covering letter alongwith debit card was issued to the account holder. Complainant was nominee of the account holder and only legal heir of deceased Deepak Kumar Kalsi. However, no policy document alongwith terms and conditions were issued by Op No. 1 and 2 to the complainant. In the covering letter, it was mentioned that personal accident insurance cover upto Rs. 10 lacs and account holder on every Rs. 1/- spent on purchase. The sum insured will be 5 times. The debit card was to be used by the account holder. Deepak Kumar Kalsi insured died in a road accident on the intervening night of 30/31.10.2013. FIR No. 108 dated 31.10.2013 was registered in PS Bajakhana. After that the claim was lodged with Op No. 2. Op No. 2 demanded documents alongwith Platinum Debit Card. It was intimated that the card was First Appeal No. 1596 of 2014 4 burnt alongwith the body of Deepak Kalsi, however, the complainant supplied death certificate, post mortem report, FIR, covering letter of the debit card. Op No. 2 had forwarded all the papers to Op No. 1 for payment. After that the complainant and her husband visited Op Nos. 1 & 2 number of times but they did not listen to them. This act and conduct of Ops, amounted to deficiency in services. Hence, the complaint with the direction to Ops to pay death claim insurance amount of Rs. 10 lacs alongwith interest @ 18% p.a., compensation of Rs. 2 lacs on account of mental agony, pains and harassment and pay Rs. 1 lac as litigation expenses.
2. Complaint was contested by Ops. Op No. 1 in its written reply took the legal objections that the complaint was not maintainable in the present form; complainant had no cause of action to file the complaint; complainant had not come to the Forum with clean hands and had suppressed the material facts from the Forum; complainant and deceased life assured violated the terms and conditions of the policy, which were supplied to him at the time of purchase of the policy from the Ops; intricate questions of law and facts were involved, which were not possible to be decided in summary procedure under the Act, therefore, the matter be relegated to the Civil Court; complaint was false, frivolous and vexatious to the knowledge of the complainant; therefore, it was liable to be dismissed and that complainant was estopped from filing the present complaint by his own act and conduct, omissions and acquiescence. On merits, it was admitted that complainant's son was having account with Op No. 2. Op No. 2 entered into agreement with Op No. 1 and purchased First Appeal No. 1596 of 2014 5 the group insurance policy named as "Cardsure Package Policy" to provide insurance coverage under Accelerated Personal Accident Insurance to protect its account holders, who were interested to get the benefit of HDFC Bank Platinum Debit Card. At the time of issuing the said card to the account holder, Op No. 2 had provided a guide book as debit card usage guide and it was clearly mentioned on the covering letter "Spend a Few Minutes Reading the Debit Card Usage Guide, which has the details of benefits, terms and conditions pertaining to your HDFC Bank Platinum Debit Card" and complainant had relied upon the said covering letter. When the Group Insurance policy was issued, it was having some terms and conditions as regard to benefits mentioned in the debit card usage guide, which was already provided to Op No. 1. It was admitted that complainant was nominee of the account holder. However, the account holder did not use the said Platinum Card in non ATM swipe/transaction within three months of the event, which was one of the condition to get the claim. The Court is bound only to interpret the policy terms and conditions. It was so observed by the Hon'ble Supreme Court in Suraj Mal Ram Niwas Oil Mills Vs. United India Ins. Co." (2010) 10 SCC 567, that it is not open for the Court to add, delete or substitute any word in the terms and conditions of the policy. Op No. 1 had received a claim from Op No. 2 with regard to debit card No. 4363030204946099 and had also provided some other documents and it was found from the documents that account holder did not use the said Platinum Debit Card at non ATM swipe within three months of the insured event, therefore, the claim filed by the complainant was not covered under First Appeal No. 1596 of 2014 6 the terms and conditions of the policy and it was rightly repudiated. It was also admitted that base coverage was Rs. 5 lacs, otherwise, it was upto Rs. 10 lacs keeping in view the usage of the card. There was no deficiency in service on the part of this Op. Complaint was without merit, it be dismissed.
3. Whereas none had appeared on behalf of Op No. 2 despite service, therefore, Op No. 2 before the District Forum was ex- parte.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence her affidavits Ex. C-1 & C-9, affidavit of Sh. Roop Lal Kalsi Ex. C-2, letter Ex. C-3, FIR No. 108 Ex. C-4, death certificate Ex. C-5, Post Mortem Report Ex. C-6, letter Ex. C-7, claim repudiation letter Ex. C-8. On the other hand, Op No. 1 had tendered into evidence terms and conditions of the policy Ex. Op-1/1, affidavit of Pankaj Kumar, Manager Legal Ex. Op-1/2.
6. After going through the allegations in the complaint, written version filed by Op No.1, evidence and documents brought on the record, the complaint was allowed by the District Forum as referred above as the son of the complainant i.e. account holder was covered under "Cardsure Package Policy" and base amount was Rs. 5 lacs. The detail of usage was not tendered before the District Forum, therefore, the basic amount of Rs. 5 lacs was allowed to the complainant against Op No. 1.
First Appeal No. 1596 of 2014 7
7. Aggrieved with the order passed by the learned District Forum, appellant/Op No.1 has filed Appeal No. 1596 of 2014 to set- aside the order passed by the District Forum whereas complainant has filed Appeal No. 1231 of 2014 for enhancement of the compensation.
8. We have heard the learned counsel for the parties.
9. In Appeal No. 1231 of 2014, counsel for the appellant/complainant has moved an application under Order 41 Rule 27 CPC to tender on the record the account statement of the account holder, which could not be tendered inadvertently. Counsel for Op No. 1 did not file reply to it, rather, at bar stated that he has no objection in case this application is allowed because he also relied upon this account statement. Accordingly, this account statement is ordered to be read into evidence as Ex. C-10.
10. It has been argued by the counsel for the appellant/Op No. 1 that claim filed by the complainant was rightly repudiated as it did not fall within the terms and conditions of the policy and that the learned District Forum had wrongly allowed the claim, therefore, the impugned order is liable to be set-aside.
11. He has argued that the complainant himself has admitted in his complaint that he had received the forwarding letter at the time of receiving the debit card and accelerator personal accidental insurance cover upto Rs. 10 lacs (Ex. C-3) and the next page of the covering letter shows that accelerated personal accident insurance cover upto Rs. 10 lacs. For every Rs. 1/- spent on purchase through the Platinum Debit Card, increase your sum insured by five times and First Appeal No. 1596 of 2014 8 then there is a note under that "for details and terms and conditions, please refer to the usage guide enclosed", therefore, for terms and conditions, he had received the usage guide, which was enclosed alongwith the forwarding letter but the complainant choose to place on the record only forwarding letter and withheld the usage guide to his own convenience to take a plea that terms and conditions were not brought to his notice. Therefore, he cannot rely upon this document in parts. The document will be read as a whole then it is clear from the document that he had received the user guide. In the written reply, it has been specifically mentioned by Op No. 1 that user guide was containing same terms and conditions as per in the policy document, which was issued to Op No. 2 because it was group insurance policy and policy was issued in the name of Op No. 2. The said policy document has been placed on the record by Op as Ex. Op-1/1 and it also contains Accidental Death Platinum, World and Business Card (Air/Rail/Road) under that sum insured was maximum upto Rs. 10 lacs per card including base cover of Rs. 5 lacs. Special conditions were as under:-
"1. Claim Submission of HDFC ERGO Corporate office to be 90 days from date of blocking.
2. Intimation of Claim to be done within 30 days from date of loss / blocking by the Insured.
3. Fraudulent transactions done by person known to the cardholder are specifically excluded.
4. The Personal Accident cover is on Worldwide basis. First Appeal No. 1596 of 2014 9
5. Non ATM swipe (transaction) is Mandatory i.e. on or before 6 months from the date of loss for claims eligibility.
6. Coverage restricted to assets purchased by HDFC Bank Platinum & Gold Debit Cards for Residential premises only.
7. This Cover does not apply to moveable properties like Jewellery, valuables, precious stones, Mobile phones, cameras, Laptops, Handy cam, documents etc.
8. The policy doesn't cover fire loss or damage to articles of combustible in nature, motor vehicles/pedal cycles deeds, bonds, bills of exchange, promissory notes, share certificates, business book, manuscripts, documents of any kind, unset precious stones and jewellery and valuables.
9. For Accidental Death coverage the following condition should be fulfilled - Under Platinum Card only. Step 1: Base Cover - Rs. 500,000 per card by doing one POS transactions in the last 3 months.
Step 2: Accelerated cover up to Rs. 500,000 (Total of up to Rs. 1,000,000) for every Rs. 1 spent on purchases through the Platinum Debit Card, sum insured increased by five times the spent amount (subject to minimum spends of Rs. 20,000) in the last 12 months as per the latest bank statement of the customer."
12. According to Condition No. 9, for accidental death coverage, it was necessary for the card holder by doing one POS transaction in the last three months. However, as per bank account statement tendered in appeal by the counsel for the appellant/OP, First Appeal No. 1596 of 2014 10 which shows that his last date for Amb charge is 4.4.2013 for Rs.42/-. Whereas as per complaint, the card holder died on the intervening night of 30/31.10.2013, therefore, card holder was not fulfilling condition No. 9 as referred above. Even he was not fulfilling condition No. 5 as referred above. Therefore, in case the card holder was not fulfilling these two conditions then the complainant was not entitled to the claim and the claim was rightly repudiated.
13. It was argued by the counsel for the complainant that policy terms and conditions were not specifically brought to his notice and this is the plea taken by the District Forum as well on the basis of which the complaint filed by the complainant was allowed but the District Forum had overlooked the document Ex. C-3 in which specific notice was given that for details and terms and conditions, please refer to the usage guide enclosed, therefore, in case user guide was enclosed alongwith Platinum Card but the same was withheld by the complainant. In case alongwith the debit card this usage guide book was not enclosed, he lateron during the life time of the insured did not make any reference to Op No. 1 that he had not received the usage guide enclosed and he had been using the Platinum card, therefore, in the absence of these possibilities there is a presumption that the account holder had received the usage guide book. A specific plea was taken by Op No. 1 that some terms and conditions were given in the usage guidebook as given in the policy document sent to Op No.
2. Since the complainant has not placed on the record usage guide book, therefore, he cannot say that terms and conditions were not there in the usage guide book or that the terms and conditions were First Appeal No. 1596 of 2014 11 different than incorporated in the policy document. Complainant has not come to the Forum with clean hands and had tried to get the claim by suppressing the usage guidebook. The District Forum has not properly interpreted the documents with regard to information to the complainant regarding terms and conditions of the policy.
14. It was further argued by the counsel for the complainant that the complaint cannot be dismissed on a hyper technical ground. Whatever the terms and conditions of the policy, Consumer Fora is to interpret only those terms and conditions and they cannot travel beyond the terms and conditions. The Court is bound only to interpret the policy terms and conditions as it was observed by the Hon'ble Supreme Court in "Suraj Mal Ram Niwas Oil Mills Vs. United India Ins. Co." (2010) 10 SCC 567, that it is not open for the Court to add, delete or substitute any word in the terms and conditions of the policy. No contrary judgment was referred by the counsel for the complainant. Therefore, the impugned judgment passed by the District Forum is not legally sustainable against Op and is liable to be dismissed.
15. In view of the above, we accept Appeal No. 1596 of 2014. Impugned order is set-aside and consequently, the complaint filed by the complainant is hereby dismissed as the claim of the complainant is not covered under the terms and conditions of the policy.
16. The appellant had deposited an amount of Rs. 25,000/- and Rs. 2,81,822/- with this Commission in the appeal. These amounts with interest accrued thereon, if any, be remitted by the registry to appellant/Op No.1 by way of a crossed cheque/demand First Appeal No. 1596 of 2014 12 draft after the expiry of 90 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
17. With regard to Appeal No. 1231 of 2014, in view of our findings in Appeal No. 1596 of 2014, when the complaint filed by the complainant has been dismissed being not maintainable as the claim is not covered under the policy terms and conditions then there is no question of any enhancement of the claim, allowed by the District Forum. Consequently, this appeal filed by the appellant/complainant is hereby dismissed.
18. The arguments in these appeals were heard on 25.5.2016 and the orders were reserved. Now the orders be communicated to the parties as per rules.
19. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
June 02, 2016. (Harcharan Singh Guram)
as Member